At page 762 Determining ex post facto clause application to grouped offenses14 citing casesdetermining that defendant’s sentence did not violate Ex Post Facto Clause where defendant’s three offenses, only one of which was committed after revision of sentencing guidelines, were grouped and sentencing court applied harsher revised guidelines
- United States v. Johnson, 145 F. Supp. 3d 862 (D.S.D. 2015).published The Eighth Circuit held that Williams had “fair warning” that his criminal conduct on May 30, 1996 “could trigger mandatory restitution” to persons other than the victim of his May 30 offense, and “ ‘that is all the Ex Post Facto Clause re…
- United States v. Vidal-Maldonado, 736 F.3d 573 (1st Cir. 2013).publishedUnited States v. Kumar, 617 F.3d 612, 626-28 (2d Cir.2010) (“We conclude that the one-book rule set forth in § 1B1.11(b)(3) does not violate the Ex Post Facto clause when applied to the sentencing of offenses committed both before and afte…
- United States v. Daniel Siddons, 660 F.3d 699 (3d Cir. 2011).publishedSee United States v. Kumar, 617 F.3d 612, 626-28 (2d Cir.2010); United States v. Duane, 533 F.3d 441, 449 (6th Cir.2008); United States v. Sullivan, 255 F.3d 1256, 1262-63 (10th Cir.2001); United States v. Kimler, 167 F.3d 889, 893-95 (5th…
- United States v. Kumar, 617 F.3d 612 (2d Cir. 2010).published Manual in effect at the end of the series.") (footnotes omitted); see also United States v. Sullivan, 255 F.3d 1256, 1262-63 (10th Cir.2001); United States v. Lewis, 235 F.3d 215, 218 (4th *627 Cir.2000); United States v. Kimler, 167 F.3d…
- Bledsoe v. United States, 384 F.3d 1232 (10th Cir. 2004).published(holding that, even when a defendant committed the last of his crimes after 1992, he had “fair warning” of the total penalty that additional criminal conduct would entail, and that warning was all that the Ex Post Facto…)
- United States v. Thomas Henry Navarez, No. 98-2108 (8th Cir. Nov. 10, 1998).unpublishedKopf, United States District Judge for the District of Nebraska. -2- offense occurred between May and December 1995, see United States v. Cooper, 35 F.3d 1248, 1251 (8th Cir. 1994) (with conspiracy it is completion date of offense that con…
- United States v. Ricky Curtis Williams, 128 F.3d 1239 (8th Cir. 1997).published When Williams trafficked in cloned phones on that date, he had fair warning his criminal conduct could trigger mandatory restitution under § 3663A(a)(3) to persons other than the victim of his May 30 offense, and "that is all the Ex Post F…
- United States v. John D. Behler, 100 F.3d 632 (8th Cir. 1996).published While we generally adhere to a "one book" rule in applying the Guidelines, United States v. Cooper, 63 F.3d 761, 762 (8th Cir. 1995), cert. denied, 116 S. Ct. 1548 (1996), as Behler urges us to do, we cannot do so with a blind eye to an ex…
- United States v. Shane Jowell Anderson, No. 08-3402 (8th Cir. July 6, 2009).publishedSee United States v. Cooper, 63 F.3d 761, 762 (8th Cir. 1995) (per curiam); see also United States v. Duane, 533 F.3d 441, 448-49 (6th Cir. 2008) (noting that “the majority of circuits” have concluded that the one-book rule does not violat…
- United States v. Anderson, 570 F.3d 1025 (8th Cir. 2009).publishedSee United States v. Cooper, 63 F.3d 761, 762 (8th Cir.1995) (per curiam); see also United States v. Duane, 533 F.3d 441, 448-49 (6th Cir.2008) (noting that “the majority of circuits” have concluded that the one-book *1034 rule does not vi…
Show 2 more citing cases
- United States v. Kimler, No. 97-20320 (5th Cir. Mar. 5, 1999).published(determining 13 that defendant’s sentence did not violate Ex Post Facto Clause where defendant’s three offenses, only one of which was committed after revision of sentencing guidelines, were grouped and sentencing court…)
- United States v. Kenneth Karl Kimler, 167 F.3d 889 (5th Cir. 1999).published(determining that defendant’s sentence did not violate Ex Post Facto Clause where defendant’s three offenses, only one of which was committed after revision of sentencing guidelines, were grouped and sentencing court app…)
At page 763 Reinstating prior opinion affirming conviction and sentence7 citing casesOur prior opinion affirming Cooper’s conviction and sentence is hereby reinstated.
- United States v. Safavian, 461 F. Supp. 2d 76 (D.D.C. 2006).publishedSee United States v. Sullivan, 255 F.3d 1256, 1261-63 (10th Cir.2001); United States v. Lewis, 235 F.3d 215, 218 (4th Cir.2000); United States v. Vivit, 214 F.3d 908, 917-19 (7th Cir.2000); United States v. Kimler, 167 F.3d 889, 895 (5th C…
- United States v. Peter Larson, 110 F.3d 620 (8th Cir. 1997).published See United States v. Cooper, 35 F.3d 1248, 1252 (8th Cir.1994), cert. granted & opinion vacated, 514 U.S. 1094 , 115 S.Ct. 1820 , 131 L.Ed.2d 742 (1995), prior opinion reinstated, 63 F.3d 761, 763 (8th Cir.1995) (per curiam), cert. denied,…
- United States v. Peter Larson, No. 96-1419 (8th Cir. Apr. 10, 1997).publishedSee United States v. Cooper, 35 F.3d 1248, 1252 (8th Cir. 1994), cert. granted & opinion vacated, 115 S. Ct. 1820 (1995), prior opinion reinstated, 63 F.3d 761, 763 (8th Cir. 1995) (per curiam), cert. denied, 116 S. Ct. 1548 (1996).
- United States v. Richard H. Strange, United States of Am. v. Charles A. Zamorano, 102 F.3d 356 (8th Cir. 1996).publishedWe'have often held that “the sentencing court should apply the Sentencing Guidelines in effect at the time of sentencing -unless the court determines that such application would violate the ex post facto clause.” United States v. Cooper, 3…
- United States v. Verna M. Lewis, 235 F.3d 215 (4th Cir. 2000).publishedCompare United States v. Vivit, 214 F.3d 908, 917-19 (7th Cir.) (holding that application of revised Guidelines Manual to offenses that occurred both before and after revision, but which were grouped for sentencing purposes, did not violat…
- United States v. Lewis, No. 00-4016 (4th Cir. Dec. 19, 2000).publishedCompare United States v. Vivit, 214 F.3d 908, 917-19 (7th Cir.) (holding that application of revised Guidelines Manual to offenses that occurred both before and after revision, but which were grouped for sentencing purposes, did not violat…
At page 761 “that is all the ex post facto clause requires,”0 citing cases
Other citing cases
- United States v. Svacina, No. 96-3317 (10th Cir. Mar. 2, 1998).published
- United States v. Dale F. Svacina, 137 F.3d 1179 (10th Cir. 1998).published
- United States v. Bailey, 123 F.3d 1381 (11th Cir. 1997).published
- United States v. James Edward Evans, 87 F.3d 1009 (8th Cir. 1996).published
v.
Tyrone G. COOPER, Appellee
Tyrone G. Cooper was convicted of three counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The offenses occurred on August 24, 1991, September 24, 1991, and January 23, 1992. On appeal, Cooper argued that the district court violated the Ex Post Facto Clause in determining his sentence when it applied November 1, 1991, amendments to the Sentencing Guidelines. We affirmed, United States v. Cooper, 35 F.3d 1248 (1994), and Cooper petitioned the Supreme Court for a writ of certiorari. That Court vacated our judgment and remanded for “further consideration in light of California Department of Corrections v. Morales, 514 U.S. -, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).” Cooper v. United States, — U.S. —, 115 S.Ct. 1820, 131 L.Ed.2d 742 (1995). We then received additional briefs from the parties regarding the issues on remand.
We conclude the Supreme Court’s decision in Morales does not alter the result in this case. Morales did somewhat modify the law we applied in this case by stating that, to trigger the Ex Post Facto Clause prohibition, a change in the law must “increase[] the penalty by which a crime is punishable,” and not merely “disadvantage” the offender. — U.S. at-n. 3,115 S.Ct. at 1602 n. 3. But that change could only work to Cooper’s disadvantage on appeal. Moreover, that change in the law was significant in Morales, because the issue was whether a change in California law increased an inmate’s punishment. Here, on the other hand, the government concedes that application of the November 1, 1991, Guidelines did increase Cooper’s total sentence; the issue is whether the Ex Post Facto Clause nonetheless permits application of the amended Guidelines to determine Cooper’s sentence because part of his criminal conduct occurred in 1992.
In his Supplemental Brief, Cooper argues that we erred in applying the Guidelines’ “one book” rule, U.S.S.G. § lBl.ll(a), because the Ex Post Facto Clause prohibits use of that rule when the effect is to increase the penalty for an offense committed before a Guidelines amendment. We disagree. Cooper committed three firearms offenses whose offense level is determined under § 2K2.1. Those offenses therefore “are to be grouped” under § 3D1.2. Application of the post-November 1, 1991, grouping rules increased Cooper’s penalty. Because the last of these groupable offenses occurred in January 1992, Cooper had “fair warning” of the total penalty this additional criminal conduct would entail. Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 963-64, 67 L.Ed.2d 17 (1981). In this context, that is all the Ex Post Facto Clause requires.
[*763] Our prior opinion affirming Cooper’s conviction and sentence is hereby reinstated.